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Court of Criminal Appeal 23 July 2002

REGINA v HART

[2002] NSWCCA 313

Also reported as (2002) 131 A Crim R 596
Assault & violenceTheft & property
CRIMINAL LAW PRACTICE AND PROCEDURE NOTE FROM JUROR ABOUT CHARACTER WITNESS NOTE RETURNED TO JURY TO DISCUSS EVIDENCE OF GOOD CHARACTER MISDIRECTION

Citation: [2002] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 23 July 2002
Judge(s): Sheller JA, Hidden J, Adams J

Background

The appellant was convicted in the District Court at Griffith of robbery with corporal violence under s 95 of the Crimes Act 1900. The Crown's case was that she had lured a man into the grounds of a TAFE college late at night so that an accomplice could rob and assault him.

The Crown's case faced a significant obstacle. A friend of the appellant, who had been with her that same evening, gave evidence that squarely contradicted the victim's account in several key respects. The Crown did not cross-examine that witness to suggest she was lying or mistaken, yet apparently invited the jury to reject her evidence anyway.

The appellant was convicted at trial and received a non-custodial sentence. She appealed to the Court of Criminal Appeal on grounds that included a misdirection concerning good character evidence and a further misdirection on the elements of the offence as they applied to an accessory.

  • Whether the trial judge misdirected the jury on how to use good character evidence by instructing them to consider it only if they already had a doubt about guilt
  • Whether a procedural irregularity arising from a juror's note (which was not marked as an exhibit, was not read onto the transcript, and was returned to the jury to discuss) contributed to a miscarriage of justice
  • Whether the trial judge failed to direct the jury adequately on the elements of robbery with corporal violence as they applied to an accessory, specifically regarding the requirement to prove the appellant's subjective awareness that violence might occur

Decision

The Court found that the trial judge's direction on good character evidence was a misdirection. The jury was told to consider good character evidence only if they already had a doubt about guilt. That is the wrong approach: good character evidence is relevant to assessing guilt in the first place, not merely as a secondary consideration once doubt has independently arisen.

A procedural irregularity concerning a juror's note further compounded the problem. The note, which related to a character witness, was not marked as an exhibit and its contents were not recorded in the transcript. Instead, it was returned to the jury to discuss among themselves. The Court held that this irregular handling, taken together with the misdirection on good character, contributed to the trial miscarrying.

The Court also found a separate and independent misdirection on the elements of the offence for an accessory. To convict an accessory of robbery with corporal violence, the Crown must prove either an explicit or implicit agreement to use violence, or that the accused subjectively foresaw the possibility of violence and continued in the enterprise anyway. This principle was settled in R v McAuliffe (1995). The trial judge directed the jury only on whether there was an agreement to rob, which did not capture the additional requirement of knowledge or foresight of corporal violence.

On the question of remedy, the Court declined to order a new trial. The Crown case was characterised as far from strong. The main prosecution witness had consumed a substantial amount of alcohol on the night in question, leaving open the possibility that his account was affected by his state of intoxication. A verdict of acquittal was substituted.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • Verdict of acquittal directed

Key Takeaways

  • Good character evidence is relevant to the assessment of guilt from the outset of jury deliberations. Directing a jury to consider such evidence only if they already have a doubt about guilt constitutes a misdirection.

  • Procedural regularity in handling juror communications matters. A note from a juror must be marked as an exhibit and its contents placed on the transcript; returning it to the jury without doing so can contribute to a miscarriage of justice.

  • Accessorial liability for robbery with corporal violence requires proof beyond the shared intention to rob. Following R v McAuliffe, the Crown must also establish that the accused either agreed (explicitly or implicitly) to the use of violence, or subjectively adverted to the possibility of violence and nonetheless continued in the joint enterprise.

  • The Court of Criminal Appeal may decline to order a new trial where the Crown case is not strong and where the circumstances make a retrial inappropriate, instead substituting a verdict of acquittal.

  • Where a key Crown witness's account is directly contradicted by another Crown witness, and no attempt is made at trial to challenge the credibility of the contradicting witness, the overall strength of the prosecution case is materially undermined.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95 (robbery with corporal violence)

Cases
- R v Prasad (1979) 23 SASR 161; 2 A Crim R 45
- R v McAuliffe (1995) 79 A Crim R 229